Exhibit 64
FOURTH AMENDMENT TO RIGHTS AGREEMENT
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FOURTH AMENDMENT dated as of March 15, 1998 (the "Third Amendment") to the
Rights Agreement dated as of November 9, 1988, as amended (the "Rights
Agreement"), between Safety-Kleen Corp., a Wisconsin corporation (the
"Company"), and The First National Bank of Chicago, as Rights Agent (the "Rights
Agent").
Pursuant to Section 27 of the Rights Agreement, the Company and the Rights
Agent may from time to time amend the Rights Agreement in accordance with
Section 27 thereof. All acts and things necessary to make this Fourth Amendment
valid and enforceable have been performed and done, including, as required by
Section 27(b) of the Rights Agreement, the delivery by the Company to the Rights
Agent of certified resolutions of the Board of Directors of the Company. Unless
the context otherwise requires, terms not defined herein have the same meanings
as in the Rights Agreement.
In consideration of the foregoing and the mutual agreements herein, the
Company and the Rights Agent agree as follows:
1. Section 1(a) of the Rights Agreement is hereby amended by deleting the
first sentence of that section and substituting the following therefor:
"(a) "Acquiring Person" shall mean any Person who or which, together with
all Affiliates and Associates of such Person, shall be the Beneficial Owner
of 20% or more of the aggregate number of Common Shares of the Company then
issued and outstanding, but shall not include (i) the Company, (ii) any
Subsidiary, (iii) any employee benefit plan of the Company or any
Subsidiary, (iv) any entity holding Common Shares for or pursuant to the
terms of any such plan, (v) SK Parent Corp., a Delaware corporation
("Parent"), SK Acquisition Corp., a Wisconsin Corp. ("Purchaser"), or any
Affiliate or Associate of Parent or Purchaser; provided, however, that
Parent, Purchaser and the Affiliates and Associates of Parent and Purchaser
will not be excepted from this definition of "Acquiring Person" in the
event that any of Parent, Purchaser or any Affiliate or Associate of Parent
or Purchaser becomes the Beneficial Owner of 20% or more of the aggregate
number of Common Shares of the Company then issued and
outstanding other than pursuant to the terms of the Agreement and Plan of
Merger, dated as of November 20, 1997 (the "Merger Agreement"), between the
Company, Parent and Purchaser or (vi) Xxxxxxx Environmental Services, Inc.,
("Xxxxxxx Environmental"), LES Acquisition, Inc. ("LES Acquisition") or any
Affiliate or Associate of Xxxxxxx Environmental or LES Acquisition;
provided, however, that Xxxxxxx Environmental, LES Acquisition, and the
Affiliates and Associates of Xxxxxxx Environmental and LES Acquisition will
not be excepted from this definition of "Acquiring Person" in the event
that any of Xxxxxxx Environmental, LES Acquisition or any Affiliate or
Associate of Xxxxxxx Environmental or LES Acquisition becomes the
Beneficial Owner of 20% or more of the aggregate number of Common Shares of
the Company then issued and outstanding other than pursuant to the terms of
the Agreement and Plan of Merger, dated as of March 16, 1998 ("LLE Merger
Agreement"), among the Company, Xxxxxxx Environmental and LES Acquisition.
2. Section 3(a) of the Rights Agreement is hereby amended by substituting
for the final sentence thereof the following:
"Notwithstanding anything in this Agreement to the contrary, a Distribution
Date shall not be deemed to have occurred solely as a result of (i) the
approval, execution or delivery of the Merger Agreement, (ii) the
commencement or consummation of the transactions contemplated by the Merger
Agreement, (iii) the approval, execution or delivery of the LLE Merger
Agreement, or (iv) the commencement or consummation of the transactions
contemplated by the LLE Merger Agreement.
3. Section 11(a)(ii) of the Rights Agreement is hereby amended by
substituting for the final sentence thereof the following:
"Notwithstanding anything in this Agreement to the contrary, an event
described in this subparagraph (ii) of Section 11(a) shall not be deemed to
have occurred solely as a result of (i) the approval, execution or delivery
of the Merger Agreement, (ii) the commencement or consummation of the
transactions contemplated by the Merger Agreement, (iii) the approval,
execution or delivery of the LLE Merger Agreement, or (iv) the commencement
or consummation of the transactions contemplated by the LLE Merger
Agreement.
4. Section 13(a) of the Rights Agreement is hereby amended by substituting
for the final sentence thereof the following:
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"Notwithstanding anything in this Agreement to the contrary, an event
described in any of clauses (i), (ii) or (iii) of this Section 13(a) shall
not be deemed to have occurred solely as a result of (i) the approval,
execution or delivery of the Merger Agreement, (ii) the commencement or
consummation of the transactions contemplated by the Merger Agreement,
(iii) the approval, execution or delivery of the LLE Merger Agreement, or
(iv) the commencement or consummation of the transactions contemplated by
the LLE Merger Agreement.
5. This Fourth Amendment shall be governed by and construed in accordance
with the laws of the State of Wisconsin applicable to contracts made and
performed entirely within such state.
6. In all respects not inconsistent with this Fourth Amendment, the
Rights Agreement is hereby ratified, approved and confirmed. In executing and
delivering this Fourth Amendment, the Rights Agent shall be entitled to all the
privileges and immunities afforded to the Rights Agent under the Rights
Agreement.
7. If any term, provision, covenant or restriction of the Fourth
Amendment is held by a court of competent jurisdiction or other authority to be
invalid, void or unenforceable, the other terms, provisions, covenants and
restrictions of this Fourth Amendment, and of the Rights Agreement, shall remain
in full force and effect and shall in no way be affected, impaired or
invalidated.
8. This Fourth Amendment may be executed in any number of counterparts,
each of which shall be an original, but all of which shall together constitute
one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Fourth Amendment to
be duly executed and attested, all as of the date first above written.
SAFETY-KLEEN CORP.
By:_________________________________
THE FIRST NATIONAL BANK OF CHICAGO
By:_________________________________
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